UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4878

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

TODD ALLEN SPENCER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Newport News. Rebecca Beach Smith, 

District Judge. (4:10-cr-00021-RBS-FBS-1)

Submitted: May 31, 2011 Decided: June 14, 2011

Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mark Diamond, Richmond, Virginia, for Appellant. Neil H. 

MacBride, United States Attorney, Scott W. Putney, Assistant 

United States Attorney, Newport News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Todd Allen Spencer appeals his conviction and sentence 

based on his guilty plea to one count of escaping from custody, 

in violation of 18 U.S.C. § 751(a) (2006). We affirm.

On appeal Spencer first contends that his plea was 

unknowing and involuntary because the district court made 

misrepresentations of law and fact at his plea hearing. Because 

Spencer withdrew his motion to withdraw his guilty plea in the 

district court and did not raise any objections during the Rule 

11 plea colloquy, the plea colloquy is reviewed for plain error. 

United States v. General, 278 F.3d 389, 393 (4th Cir. 2002); 

United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002). 

To demonstrate plain error, a defendant must show that: 

(1) there was an error; (2) the error was plain; and (3) the 

error affected his “substantial rights.” United States v. 

Olano, 507 U.S. 725, 732 (1993). A defendant’s substantial 

rights are affected if the court determines that the error 

“influenced the defendant’s decision to plead guilty and 

impaired his ability to evaluate with eyes open the direct 

attendant risks of accepting criminal responsibility.” United 

States v. Goins, 51 F.3d 400, 402-03 (4th Cir. 1995) (internal 

quotation marks omitted); see also Martinez, 277 F.3d at 532 

(holding that defendant must demonstrate he would not have pled 

guilty but for the error). Our review of the record indicates 
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that the district court did not err, much less plainly so, in 

accepting Spencer’s plea. 

Next Spencer contends that the district court erred in 

failing to adequately consider the statutory sentencing factors 

and to adequately state its reasons for the chosen sentence. 

This court reviews a sentence for reasonableness, applying an 

abuse of discretion standard. Gall v. United States, 552 U.S. 

38, 51 (2007); United States v. Layton, 564 F.3d 330, 335 (4th 

Cir. 2009). In so doing, the court first examines the sentence 

for “significant procedural error,” including “failing to 

calculate (or improperly calculating) the Guidelines range, 

treating the Guidelines as mandatory, failing to consider the 

§ 3553(a) factors, selecting a sentence based on clearly 

erroneous facts, or failing to adequately explain the chosen 

sentence.” Gall, 552 U.S. at 51. The district court is not 

required to “robotically tick through § 3553(a)’s every 

subsection.” United States v. Johnson, 445 F.3d 339, 345 (4th 

Cir. 2006). However, the district court “must place on the 

record an ‘individualized assessment’ based on the particular 

facts of the case before it. This individualized assessment 

need not be elaborate or lengthy, but it must provide a 

rationale tailored to the particular case at hand and adequate 

to permit ‘meaningful appellate review.’” United States v. 

Carter, 564 F.3d 325, 330 (4th Cir. 2009) (quoting Gall, 552 
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U.S. at 50) (internal footnote omitted). A reviewing court then 

considers the substantive reasonableness of the sentence 

imposed, taking into account the totality of the circumstances. 

Gall, 552 U.S. at 51. After reviewing the record, we conclude 

that Spencer’s sentence was both procedurally and substantively 

reasonable.*

Lastly, Spencer claims that the district court failed 

to depart pursuant to 

 

U.S. Sentencing Guidelines Manual § 5K2.13 

(2009) because it did not understand the extent of its authority 

to do so. “An appellate court lacks the authority to review a 

sentencing court’s denial of a downward departure unless the 

court failed to understand its authority to do so.” United 

States v. Herder

Accordingly, we affirm the judgment of the district 

court. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

, 594 F.3d 352, 362 (4th Cir. 2010) (internal 

quotation marks omitted). Because the district court clearly 

understood its authority to depart from the Guidelines, we lack 

authority to review this claim. 

 * In concluding that the basis for the district court’s 

chosen sentence articulated at the sentencing hearing fully 

satisfied Gall’s requirements, we reject Spencer’s argument that 

the court’s failure to also prepare a written statement 

explaining its decision to sentence him outside of the 

applicable Guidelines range constitutes reversible error. 
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before the court and argument would not aid the decisional 

process. 

AFFIRMED